tv [untitled] April 3, 2011 1:30am-2:00am PDT
waiting for justice every day. what he did not see was a lawyer, so he took it upon himself to study it and write about it, and i am going to let you tell what happened. >> unlike judge our common and the judges in dept. 43 j judge bauer -- unlike judge bauer common the judges in department 43 are borden. there is no one to make objections or advocate for the people who go to these courtrooms, because they have never had them there. there is no lawyers, so what happens is i go into the courtroom, and i hide behind a broad-shouldered deputy so the judge does not recognize me, and i listen and watch. the judge comes in, and everybody rises, and the judge
goes through the speech she gives to the defendants who have been waiting all weekend in many cases to get out because they are there for public intoxication or failure to appear for a warrant, so they have been picked up on the weekend. i will exaggerate. she comes up and goes, you are here charge, and you have the right to go to counsel. i will do the deal for you right now, and if you want a public defender, you can get a public defender. let's go. then what happened is a long line of guilties. guilty, guilty, guilty -- incontinent -- not guilty. no continent. guilty, guilty, guilty.
i am an amateur, but even i am saying to myself, what is going on here famines -- what is going on here? i go to many of these courts and see exactly the same thing, so i start to ask what is happening, and basically, historically, the public defender's office has never put anyone there. it is almost like a client agreement between the two not to spend the resources. the reason i was there in the first place was because san jose had become like las vegas. what we were looking into were these public intoxication charges, and if you do not know, you can be arrested for public fear intoxication if you're so drunk that you are a danger for yourself or others, and it is up to the police officer to decide
whether you fit that description. i was looking at the civil rights lawsuit alleged police were misusing the slot to basically clean up the streets common so we asked out of -- miss using the law to basically clean up the streets, so we asked how many people have been arrested for intoxication, and they got back to me and said, 5000 a year. he said that is a mistake. he said, you put a 0 on the end. i called him back, and said few double check this. we were curious about what was going on in san jose, and we started to lookin into these charges, and we also started to
look at other discretionary crimes, the kinds which police are the arbiters of whether or not you reach a probable cause, and we found out san jose was busting people right and left for public intoxication or resisting arrest or disturbing the peace and all sorts of crimes, and the racial disparities were off the charts when we compare them to other cities. public intoxication, there were 57% latino people being arrested. we have 3% latino people in the city. where were these 5000 people going? they were going to department 42, where the woman judge was going guilty, guilty, guilty, incontinent. we started doing a series of stories. i keep hearing these depressing stories about how you're dealing
with budgetary cutbacks, but when we did our story in the public defender's office, there was a wave of embarrassment to say the least, and within a couple months, the board of supervisors added $1 million a year to add lawyers in a lot of misdemeanor court rooms, and starting monday, i believe they are going to start putting lawyers in the apartment 42. -- in department 42. [applause] >> id raises an interesting -- that is really incredible. this practice has been going on for years and years of not providing lawyers. it is a sea change, and because of that, there will be thousands of people who will get counsel.
one of the questions i have is as a journalist, how are you able to work with defense attorneys or public defenders to bring like to ordinary in justice salmon -- bring light to ordinary injustice? amy has written this book, and a cup of book award. -- it got a book award. [applause] how can defense attorneys or people who work in the system make that known and worked with journalists? >> i generally bring everybody out to lunch or to a bar or to both.
journalists and police officers have this classic cold war, and there was even a cold war between defense attorneys and journalists -- certainly between prosecutors and reporters, and i find if i write a story they cannot just come back and say, this is wrong, and this is wrong. if they are faced with the fact i have busted my butt to get everything right and have gone to them and really tried hard to represent my view points, then they do not have an argument about going to a bar with maie. we have people whispering to us, and that is part of the dynamic, but i find once you develop a reputation for trying hard to understand all the things you people learn in hastings and asking stupid questions over and over again -- is there a police
called in continent? -- plea called in continent? if you ask the questions, eventually they explain. even the judges in santa clara county who were giving the colloquies, and the judges who would turn to defendants and say, i would like to get this resolved today, which basically means to plead guilty or no contest, they talked grudgingly. >> watch out if you ask someone out for a drink. i know in your study one of the things you found was there was a tremendous amount of pressure that came from the judges. can you talk briefly about that? >> sure. does this still work? >> one of the things we found that was very disturbing in our study was that nearly three out
of four offices reported they had been pressured by county commissioners to cut costs. a good example of fat was recently reported -- good example of that is that it was recently appreported sacramento was planning to cut a third of their budget, yet their caseloads are already at twice the number of the national standards permit, so you have got that kind of economic pressure. there is also another type of pressure that comes from the lack of professional independence, the way we structure our public defense, especially our contract systems. when i was doing research for the commission, i interviewed the public defender's office,
and they were brought into the office. they were not elected. they were selected by the chief operating officer, whose main bottom line is economics, not justice, and they said, this is the budget you are going to be given. you either do the job with that budget, or we get someone else. are you willing to take the job? that was the condition and made bluntly. i happened to be on the panel. everybody was talking about stakeholders and how we wanted a team player. i think the culture makes the player. now you hire somebody that is going to be a team player. we need independents.
i am not sure i would go with the reelection everywhere. in san francisco, you have got an intelligent electorate, but i think independence is very important. also, you have to be independent of the judges. we found they were intimately involved in selecting the people who would appear before them. we found 90% of public defenders reported judicial pressure to expedite cases. that means when you are under one staff -- understaffed and overworked, the judge says, you have enough time. we need to move things along. this train that has to be speeding -- i think that is a real problem. judges are implicit when public defender offices are not given
the resources to do an adequate investigation, so i think those are big problems we see. >> you raise an interesting point about whether a public defender should be elected or appointed. let me ask you this. you are appointed common and and i saw when you made your case -- you are appointed, and i saw when you made your case, they basically accuse you of mismanagement common and and they pointed the finger at year- end said, you have a $300,000 deficit. -- at you and said, you have a $300,000 deficit. i am curious to know, because you are appointed, what pressures did you feel to stand up for your office?
the consequences to your career? >> you have to have the mindset that your ethical obligations to your clients come first. if that means your neck is on the line, so be it. if you have not got the guts for that, you should not be taking a job as a public defender. [applause] i went through that whole circus. what it comes down to is, there are two competing factors involved. you are a department head. you are supposed to watch out for the budget, etc., but the budget comes second to the rights of the accused, the people you represent. people ask whether i was conflicted as to where my
loyalties lie, and i said, i am not conflicted at all. my loyalties lie in one direction, and that is the people i represent, so when they say, you had better cut this or that because it is good for the county. if it is not good for my client, it is not going to happen. >> i want to acknowledge the public defender of sacramento is here, answer john represents the project, and he is here. we learned there was a lab technician stealing drugs from the lab. this was going on apparently for some time. we do not know exactly how long, but what was alarming is ahead of the narcotics unit in
november told the supervisors with in that office that there was a problem with this witness, that his witness was unreliable, and yet criminal investigation open until february. likewise, she called police and said she had found vials' that appeared to be from the crime lab of cocaine, and again, nothing was done, even though the police did look into it. there was a recommendation that there be a criminal investigation, and then nothing happened for several months. starting with you, john, how could this happen? how does it happen? when we talk about ordinary in justice, we have a situation
here where an entire office of prosecutors did not run record checks on police officer witnesses. as many as 130 so they have no convictions -- sure they have convictions. it is required they expose this information. we do not have access to it. we can file a motion, but my understanding is that evidence that was withheld was not a sensible to the defense, so we have a systematic failure of the district attorney's office in san francisco to provide people with this evidence, and it can make a huge difference if you have an officer convicted of a crime, and i do not think anyone would want an officer on
the street who would be convicted of a serious crime. any thoughts on that? >> i think it comes down to several things. first is the culture of office. what you see a lot of prosecutors office is a win at all costs mentality. it is not about the real job, which is to seek justice and the truth, and the other part of the problem is there is a reluctance on the part of prosecutors and judges, especially when you take a look and a wrongful conviction cases, to admit they have problems or they have made mistakes, and that is one of the most difficult things to try to overcome. as has been discussed by several panel members, all the stakeholders in our criminal
justice system have an interest in moving things along, and the minute you tried to throw some type of change in that process, that screws things oup, and that knocks the system of the rails, and when you have prosecutors underwithholding evidence and not allowing the doors and windows to be open, you have a serious problem, and we in the community have a right to demand that change. i think we have done an abysmal job of holding people accountable in criminal cases. in civil cases, they get sanctioned all the time, but rarely do you see any prosecutor or defense attorney
give brought before the state bar disciplinary proceedings and actually take a look at the conduct -- not like what happened in a lot of prosecutorial misconduct case, and whether or not it is harmful or harmless. what we need to do is take a look at the misconduct, because what happened happens around the country on a daily basis. that is ordinary injustice. this guy gets miss hard for misconduct -- misbarred for misconduct, and somebody else skates free. we need to be looking at conduct. we need to be opening up offices. we need to be asking questions and getting the media involved
and not be hiding behind this secrecy. >> we are now going to turn to some questions from audiences. if you have questions, please write them on a card, and you can give them to anyone. this is a question regarding a similar controversy in riverside county, and the question is, have judges here barred admission of evidence at trial. if so, how does the public defender's office address that? the judge who heard the motions in this case has decided most of the materials the prosecutor was not providing on the basis that
there was a criminal investigation involving the technician who was dealing drugs has been released, and we are learning about what evidence prosecutors have, what they would help, and we will be making motions to withdraw please, and one thing i think gets lost in some of the coverage is people think, who cares if somebody was dealing drugs? the problem is when you start looking at the evidence that was coming back, because they would do a retest of the evidence -- in some cases there were more drugs. in some cases there were less drugs. in some cases there were problems with their results, whether they were false positives or false negative common ---, and when you are
talking about the integrity of a crime lab that is in charge of deciding who is guilty and not give states and the process is flawed, you cannot trust anything that comes out of the lab. we had a dna sample that came out in september where the dna of two technicians found in the sample that was tested, and the irony is we had made a number of challenges to the crime lab requesting an audit in november the showed they lost their accreditation, and we had to go to court because they would not turn it over, and the judges were telling us, you are making a mountain out of a molehill. little did we know there was all this bubbling underneath, so it is true the onus of the burden is on the defense, because once
we have the information we have to file the motion. it is a tremendous amount of work we have to do, but what we need to do is make sure there is a process so people who were convicted can bring their cases back to court. our next question from the audience says, in santa clara county when people plead guilty to misdemeanors, what happened? did they go to jail? for how long? what type of crimes? >> one of the chief dynamics that was happening was that many people were faced with a choice between staying in jail sometimes up to a week or even longer waiting for a public defender to get to their case for just to get out right fair, -- right there, because the judge was basically saying,
plead guilty. what is the big deal? that was the impression. everybody was taking the deal. you could almost see them talking to each other. you could see them make that decision. any pointed out it is a huge deal for a misdemeanor. 5000 people just on convictions out of the courtroom, and who knows how many other guilty convictions, with immigration consequences, sometimes deportation, housing implications, job implications. it was amazing the damage that was coming out of that courtroom. of were some of the people are pleading guilty guilty? of course they were, but you did not have an advocate for them.
if there was not representation. there was not advocacy for the people. there was not advocacy for the client, the defendant, and the judge took all those hats on at once, and i think even they acknowledge they were not doing a great job of it, so most people avoided jail on some of those charges like public intoxication, but they ended up with convictions. a lot of people went to jail. >> thank you. the next question is for amy. how can we talk about ordinary injustice without talking about the inherent problem us plea- bargain is and how the use of plea bargains undermines the truth finding process of the justice system? >> i gave a talk at n.y.u. to a
small group of criminal justice law professors, and one professor stood up and said, why didn't you recommend your conclusion that we get rid of clean bargaining and that we have trials for everybody. clearly, these plea-bargain are inherently coercive, and my answer is if you got rid of a plea-bargain in, that is like saying 50% of marriages end in divorce. we should get rid of the institution of marriage. it is so much a part of our system that if we turned it on its head, first of all, people say the system would collapse, but it is an inherent part of our society and judicial system, so given the system we have worked with, i believe a plea is
not inherently coercive. a plea bargain can be a good deal if individual circumstances are looked at, and public defenders talk to their clients. they do investigations. they negotiate with the prosecutor, and if the deal is given for the courts friends 1/5 of the time, i do not think that is necessarily -- accord spends 1/5 of the time, i do not think that is a bad thing, but sometimes people do not have the resources to do the investigation, but there is this courtroom culture, where it is, let's just get this through with fast-food justice, and individual circumstances are not looked at. that is when there is a serious problem. >> 95% of criminal cases in this
country result in plea bargains, which means the system itself is ripe for abuse, and part of the problem is if you do not have a competent defense attorney challenging that, because prosecutors will overcharge. they do not have the evidence, so they can force sometimes these plea-bargain on individuals, and that is why it is incumbent for the defense attorney to really challenge when they are negotiating with the prosecutor in a plea bargain and really push for all the stuff and the prosecutors' files and let them really disclose what they have. >> we found the overwhelming majority of cases are disposed of -- of felonies are disposed of by the felony disposition
conference in chicago -- in san diego, and across the state everybody has this prior to the hearings, prior to any testing women in san diego -- to any testing. i think plea bargain with the caveat that it be fully investigated before you plead not declared guilty. that story you said about a husband who broke the leg of the infant child and threatened to beat her up, so she took the fall and pled guilty, so i think the failure to investigate comes into whether a plea bargain can be reasonable in our system. right now it is not rational. >> a couple of quick questions. the problem you are outlini